DEVASSIA Vs. STATE OF KERALA

JUDGEMENT

(1.) CR. R.P. No. 302 of 1961 is filed by the accused in Summary Trial Case 1787 of 1960. He was prosecuted by the Changanacherry Municipality for offences under Ss. 334 and 359 of the Travancore District Municipalities Act - Act XXIII of 1116 - for contravention of the provisions of S. 261 and the bye-laws framed thereunder for having stored in building No. 348 tiles, bricks and surki without taking out a licence. The Second Class Bench of Magistrates, Changanacherry who tried the case convicted him of the offence charged. CR. R.P. No. 310 of 1961 is filed by the accused in Summary Trial Case 1786 of 1960 who had been convicted for a like offence for having stocked for sale, coffee husk and tea without obtaining a licence. CR. R.P. Nos. 382 and 383 of 1961 are filed by one P.K. Hassanbava Rowther a Tea Merchant in Kottayam who was prosecuted and convicted for an offence under rule 31 (2) read with rule 38 of Schedule II and S. 360 of the Travancore District Municipalities Act for failure to pay profession tax. In all these petitions the common question of law that arises is whether the revision petitions filed by them are maintainable.

(2.) CLAUSE 5 of S. 439 Cr. P.C., reads as follows: "Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed". So under this sub-clause, the High Court is precluded from exercising the powers of revision at the instance of the accused, who had a right of appeal, but did not exercise it, What we have to see, is whether in these cases the accused had really a right of appeal, because if they had the right and did not avail of the remedy, petitions in revision cannot be entertained.

(3.) THE question is whether S. 15 (2) would apply in these cases. S. 15 Cr. P.C. reads as follows:-